Cite as 2024 Ark. 145

SUPREME COURT OF ARKANSAS

No. CV-24-52

PROGRESSIVE NORTHWESTERN 

INSURANCE COMPANY

APPELLANT

V.

MISTY HUDDLESTON AND LANE 

HUDDLESTON, INDIVIDUALLY 

AND ON BEHALF OF ALL 

ARKANSANS SIMILARLY SITUATED

APPELLEES

Opinion Delivered: October 3, 2024

APPEAL FROM THE POPE

COUNTY CIRCUIT COURT 

[NO. 58CV-22-74]

HONORABLE JACK “JAY” T. 

PATTERSON II, JUDGE

AFFIRMED.

SHAWN A. WOMACK, Associate Justice

Appellant Progressive Northwestern Insurance Company appeals a Pope County 

Circuit Court order certifying a class to pursue claims against Progressive for a uniform 

adjustment practice that allegedly violates Arkansas insurance law and is applied to all of

Progressive’s insureds who responsibly maintain health-care insurance with separate 

providers. For reversal, Progressive argues: (1) the claims alleged by the Plaintiff 

(Huddleston) are not common of that of the class; (2) they do not predominate over 

individual issues; (3) Huddleston is not typical of the class; and (4) a class action is not a 

superior method to handle hundreds, if not thousands, of these cases. We affirm.

I. Facts and Procedural Background
2

This is an appeal from a class-certification order against Progressive Northwestern 

Insurance Company. Huddleston challenges Progressive’s alleged uniform adjustment of 

medical expense insurance coverage (Med-Pay) in violation of Arkansas insurance law. The 

class, consisting of Progressive’s insureds who maintain health-care insurance with separate 

providers, contends that Progressive’s adjustment practice improperly reduces Med-Pay 

benefits on the basis of payments from secondary health-care insurance. 

Med-Pay, governed by Ark. Code Ann. § 23-89-202 (Repl. 2014), provides primary 

coverage for medical expenses following an automobile accident and must pay without 

consideration of other insurance. See Ark. Ins. Comm’n R. 21 § 6; Ark. Ins. Comm’n 

Bulletin No. 4-74 (Apr. 5, 1974).

1

 Despite these legal requirements, Progressive employs 

an adjustment method using “Code 563” on explanations of benefits. This practice adjusts 

Med-Pay benefits to reflect amounts paid, anticipated to be paid, or capable of being paid 

by the insured’s health-care provider, regardless of the medical provider’s actual billing. This 

adjustment is documented in Progressive’s “Guidelines for Health Insurance Payments—

State Specific,” which directs that Med-Pay reimbursements match the amounts paid by the 

insured’s health-care insurance. This results in a reduction of payments in alignment with 

the secondary insurance’s coverage, rather than the billed amount.

The named plaintiff, Misty Huddleston, filed this action on behalf of her minor son 

and similarly situated insureds after their Med-Pay claim was adjusted using Code 563 

following an automobile accident. Huddleston argues that Progressive’s adjustment practice 

1https://insurance.arkansas.gov/site/assets/files/1914/4-74.pdf, archived at 

https://perma.cc/AF38-3U3Q.
3

violates Arkansas law by considering secondary health-care insurance when calculating 

primary Med-Pay coverage. Given the uniform application of the practice, she sought class 

certification, a declaration that the practice is unlawful, and damages for breach of contract, 

asserting that Progressive’s policy promised Med-Pay benefits unadjusted for secondary 

insurance payments.

Following discovery, Huddleston moved for class certification, which the circuit

court granted. The class includes all Arkansas residents who had Med-Pay claims adjusted 

by Progressive using Code 563 and received less than the policy limit for their claims 

between February 16, 2017, and September 28, 2023. Progressive appeals the certification 

of this class.

II. Standard of Review

The certification of a class action is governed by Arkansas Rule of Civil Procedure 

23. Rule 23 imposes six prerequisites for certification of a class-action complaint: (1) 

numerosity; (2) commonality; (3) typicality; (4) adequacy; (5) predominance; and (6) 

superiority. Ark. R. Civ. P. 23(a), (b).2 Circuit courts have broad discretion regarding class 

certification, and we will not reverse a circuit court’s decision to grant or deny class 

certification absent an abuse of discretion.3

When reviewing a class-certification order, we focus on the evidence contained in 

the record to determine whether it supports the circuit court’s conclusion regarding 

2Philip Morris Cos. Inc. v. Miner, 2015 Ark. 73, 462 S.W.3d 313.

3See Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). 
4

certification.4 Our focus is “whether the requirements of Rule 23 are met,” and “it is totally 

immaterial whether the petition will succeed on the merits or even if it states a cause of 

action.”5 Stated another way, neither this court nor the circuit court may “delve into the 

merits of the underlying claims when deciding whether the Rule 23 requirements have 

been met.”6 This is because, under Arkansas law, class certification is purely “a procedural 

question.”7 With these standards in mind, we now turn to the merits of this appeal.

III. Discussion

On appeal, Progressive challenges the circuit court’s findings on four of the six 

prerequisites for a class action. First, Progressive argues that there are no common questions

because the use of the 563 Code varies depending on the specific payment scenario and 

because of differences in individual damages. Next, rehashing the same commonality 

arguments, Progressive claims that common questions do not predominate over individual

issues. Third, Progressive argues that the Plaintiff’s claims are not typical of those of the 

class. And fourth, Progressive argues that a class action is not a superior method to adjudicate 

Huddleston’s claims.

A. Commonality

4Asbury Auto. Grp., Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006).

5Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004).

6Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 116, 205 S.W.3d 127, 130 (2005).

7Carquest of Hot Springs, Inc. v. Gen. Parts, Inc., 367 Ark. 218, 223, 238 S.W.3d 916

919–20 (2006).
5

One of the prerequisites for bringing a class-action complaint is that “there are 

questions of law or fact common to the class.”8 This is the commonality requirement. This 

requirement is met if even a single issue is common to all class members.9 A uniform practice 

alleged to affect all class members in the same way can satisfy commonality, as it gives rise 

to a shared cause of action.10 The circuit court must identify the common issues in a cause 

of action when certifying a class.11

Below, the circuit court identified three common issues: (1) whether the 563 Code 

adjustment practice is unlawful under Arkansas insurance law; (2) whether this adjustment 

practice constitutes a breach of the Med-Pay insurance contract; and (3) whether class 

members are entitled to damages or other relief. The Plaintiff claims these questions arise 

from the uniform application of the 563 Code adjustment practice, which reduces MedPay benefits on the basis of secondary health insurance payments, regardless of the provider’s 

actual billing. And since all class members are affected by this practice in the same way, the 

core question—whether the 563 Code adjustment practice is lawful—remains common to 

all. We agree with Huddleston and, accordingly, affirm the circuit court’s finding on 

commonality.

8Ark. R. Civ. P. 23(a)(2).

9City of Conway v. Shumate, 2017 Ark. 36, at 4, 511 S.W.3d 319, 323–24.

10Walls v. Sagamore Ins. Co., 274 F.R.D. 243, 254 (W.D. Ark. 2011).

11Philip Morris, 2015 Ark. 73, at 4, 462 S.W.3d at 316 (quoting Newberg, Class 

Actions § 3.10 (3d ed. 1993)).
6

Here, Progressive’s practice of adjusting Med-Pay claims based on health insurance 

payments is uniform and affects all class members equally. Yet Progressive argues that the 

use of the 563 Code varies depending on the specific payment scenario, suggesting that this 

undermines commonality. Progressive’s argument is misplaced. The variation in who is 

paid—whether it be the medical provider, the insured, or the health-care insurer—is 

irrelevant to the common issue at hand. The key question is how Progressive calculates 

Med-Pay benefits based on health-care insurance payments, a practice the class alleges is 

unlawful. This question is central to the case and applies uniformly to all class members, 

thereby establishing commonality. Likewise, Progressive’s assertion that differences in 

individual damages defeat commonality is unconvincing. As in Municipal Health Benefit Fund 

v. Hendrix, 2020 Ark. 235, 602 S.W.3d 101, differing damages amounts do not negate 

common legal and factual issues. The focus here is on the legality of the 563 Code 

adjustment practice, and if it is found unlawful, the determination of damages can follow 

from Progressive’s own records. Therefore, we affirm the circuit court’s findings on 

commonality.

B. Predominance

The next issue involves predominance. Predominance is a shorthand term for the 

following Rule 23(b) requirement: “An action may be maintained as a class action if . . . the 

court finds that the questions of law or fact common to the members of the class 

predominate over any questions affecting only individual members.” The starting point in 

examining the predominance requirement is whether a common wrong has been alleged 
7

against the defendant.12 This element can be satisfied if the preliminary, common issues may 

be resolved before any individual issues.13

In making this determination, we do not merely compare the number of individual 

versus common claims.14 Instead, we must decide if the issues common to all plaintiffs 

“predominate over” the individual issues, which can be resolved during the decertified stage 

of bifurcated proceedings if necessary.15 Conducting a trial on the common issue in a 

representative fashion can achieve judicial efficiency.16 Thus, the mere fact that individual 

issues and defenses may be raised regarding the recovery of individual members cannot 

defeat class certification where there are common questions concerning the defendant’s 

alleged wrongdoing that must be resolved for all class members.17

In this case, the crux of the matter is whether Progressive’s practice of calculating 

Med-Pay benefits by coordinating those benefits with its insureds’ secondary health-care 

insurance is lawful under Arkansas law. This singular issue dominates the case and applies 

uniformly to all class members, making it ripe for class-wide adjudication. Indeed, this 

question dominates the case because it applies to all class members who were affected by the 

12Kersten v. State Farm Mut. Auto. Ins. Co., 2013 Ark. 124, 426 S.W.3d 455.

13Asbury Auto., 366 Ark. at 610, 237 S.W.3d at 469.

14Philip Morris, supra.

15Id.

16Id.

17Id.
8

same uniform adjusting practice. As in Robertson, where individual negotiations and 

professional discretion were argued to introduce individual issues, Progressive similarly 

suggests that individualized issues exist, particularly the issue of damages.18 However, the 

existence of such issues does not defeat predominance. Shumate, 2017 Ark. 36, at 8, 511 

S.W.3d at 325, clarifies that the possibility of individual defenses or damages inquiries does 

not negate class certification when there are overriding common questions concerning the 

defendant’s alleged wrongdoing.

The circuit court correctly recognized this when it found that if the 563 Code 

adjusting practice is found to be unlawful, that determination would apply across the entire 

class, just as a judgment in favor of Progressive would preclude future challenges. This 

consistent application of the adjusting practice, coupled with the common question of its 

legality, demonstrates that predominance is satisfied in this case. Therefore, we affirm the 

circuit court’s finding that the common issues predominate over any individual questions.

C. Typicality

Progressive also challenges the typicality of Huddleston’s claims, asserting that her

experience is not representative of the entire class. However, the typicality requirement, as 

set forth in Ark. R. Civ. P. 23(a)(3), is met when the class representative’s claims arise from 

the same course of conduct that gives rise to the claims of other class members.19 The focus 

of the typicality analysis is on the defendant’s conduct, not the specific injuries or damages 

18Farmers Union Mut. Ins. Co., Inc. v. Robertson, 2010 Ark. 241, 370 S.W.3d 179.

19See DIRECTV, Inc. v. Murray, 2012 Ark. 366, 423 S.W.3d 555.
9

suffered by individual plaintiffs.20 Thus, varying fact patterns or degrees of injury among 

class members do not defeat typicality so long as the underlying legal theory and the alleged 

conduct are the same for all plaintiffs.21

Here, the core issue is whether Progressive’s 563 Code adjustment practice violates 

Arkansas insurance law. This practice allegedly impacted all class members uniformly by 

coordinating Med-Pay benefits based on the insureds’ secondary health insurance. 

Huddleston’s claim, like those of the other class members, arises directly from this practice. 

Whether this adjustment practice is lawful is the key question that applies equally to all class 

members. Thus, Huddleston’s claims are not merely typical—they are identical to those of 

the class. As the circuit court correctly observed, “the factual and legal basis of Defendant’s 

alleged liability are common to all members of the Class and represent a common cause of 

action to Plaintiff and the Class members.”

Once more, Progressive attempts to challenge typicality by pointing to potential 

differences in injuries or damages among class members, focusing on who was paid and 

when. However, as this court has previously noted, arguments regarding individual damages 

do not affect the determination of typicality, which pertains to the defendant’s conduct––

not the specifics of each plaintiff’s injury.22 Progressive’s argument fails to acknowledge that 

the 563 Code adjusting practice was applied across the board to all class members, including 

20Diamante, LLC v. Dye, 2013 Ark. 501, 430 S.W.3d 710.

21Cach, LLC v. Echols, 2015 Ark. 446, 506 S.W.3d 217.

22Carquest, 367 Ark. 219, 238 S.W.3d 916.
10

Huddleston’s son. This practice, if unlawful, would have uniformly reduced Med-Pay claim 

payments, constituting a breach of contract under Arkansas insurance law.

In short, the circuit court’s determination that Huddleston’s claims are typical of the 

class is well-founded. We therefore affirm the circuit court’s finding that Huddleston is a 

typical class representative.

D. Superiority

Last, Progressive contends that a class action is not the superior method to adjudicate 

Huddleston’s claims. Under Ark. R. Civ. P. 23(b), a class action must be “superior to other 

available methods for the fair and efficient adjudication of the controversy.”23 The 

superiority requirement is satisfied when class certification is the more efficient method of 

handling the case, and it is fair to both sides.24 In determining superiority, courts consider 

whether common, predominating questions of law or fact exist that can be decided on a 

class-wide basis, as well as the manageability of the class and the need to avoid multiple 

suits.25

Here, the circuit court properly found that a class action is the superior method for 

handling the claims against Progressive. The court specifically noted that, “given the 

predominance of the common issues,” a class action is “unquestionably superior to litigating 

hundreds of individual lawsuits.” Each suit would require an analysis of the same 563 Code 

23Asbury, 366 Ark. 607, 237 S.W.3d 463.

24ChartOne, Inc. v. Raglon, 373 Ark. 281, 283 S.W.3d 576 (2008).

25Id.
11

adjustment practice, which would result in repetitive litigation of the same legal issues. This 

duplication of effort would not only waste the resources of both the court and the parties 

but would also risk inconsistent adjudications. The legality of Progressive’s uniform 

adjustment practice is at the heart of this case, making it particularly well-suited for class 

adjudication.26

Progressive argues that individual claims should be litigated separately, but this 

argument overlooks the fact that each class member is seeking to enforce the same Arkansas 

law against the same adjustment practice. As the circuit court correctly concluded, there 

are no individual issues that would strain manageability. The application of Arkansas law is 

uniform across all claims, and the case does not involve complex variations in the law of 

multiple jurisdictions. Progressive’s brief offers only a cursory challenge to the circuit court’s 

superiority finding, failing to address the core issue: whether its 563 Code adjusting practice 

violates Arkansas insurance law. As the circuit court noted, the legality or illegality of this 

practice applies uniformly to all class members. If it is unlawful, the class prevails; if not, 

Progressive prevails. There is no more efficient or fair method to adjudicate these claims 

than through a class action, and Progressive’s arguments to the contrary miss the central 

issue in the case. Accordingly, we affirm the circuit court’s finding that class treatment is 

the superior method for handling this case.

For the foregoing reasons, we affirm the circuit court’s class-certification order.

Affirmed.

26Id. at 373 Ark. at 287, 283 S.W.3d at 585.
12

Eversheds Sutherland (US) LLP, by: Kymberly Kochis and Tracey K. Ledbetter (admitted 

pro hac vice); Anderson, Murphy & Hopkins, L.L.P., by: Debbie S. Denton and Mark D. 

Wankum, for appellant.

Streett Law Firm, P.A., by: James A. Streett; Herzfeld, Suetholz, Gastel, Leniski & Wall, 

PLLC, by: Joe P. Leniski; Brian G. Brooks, for appellees.